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Five and a half years ago, Edward Snowden put his life on the line, gave up his country, and went into exile, just to reveal that he had been part of a widespread, illegal mass-surveillance program within the US government -- an illegal enterprise that the most senior spies in the nation had routinely lied about (including lying to Congress), and that had distorted the internet, suborning the titans of surveillance capitalism and pressing them into service as part of a program of national surveillance unlike any the world has ever seen.
Read the rest “Assessing Snowden's legacy, five years on”

As we wait to hear Obama's plan to reform the NSA, spare a thought for the poor rubberstamping judges of the Foreign Intelligence Surveillance Court, who are charged with the solemn duty of granting permission for pretty much every stupid, overreaching surveillance plan America's spooks bring before it in its secretive, unaccountable chambers. These hardworking civil servants have sounded the alarm that any burden on them to actually pay attention to whether surveillance is proportional, necessary and legal would put an undue strain on them: "Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts' ability to perform their duties." Oh, diddums. Read the rest “Rubberstamping FISA court can't be expected to actually oversee surveillance”

The Electronic Frontier Foundation has won a huge victory in its ongoing battle to turn over the rock of secret surveillance in the USA. A federal court has ordered the government to publish a 2011 opinion from the Foreign Intelligence Surveillance Court in which the court held that the NSA's surveillance was unconstitutional and not in "the spirit of" federal law.

For almost two years, EFF has been fighting the government in federal court to force the public release of an 86-page opinion of the secret Foreign Intelligence Surveillance Court (FISC). Issued in October 2011, the secret court’s opinion found that surveillance conducted by the NSA under the FISA Amendments Act was unconstitutional and violated “the spirit of” federal law.

Today, EFF can declare victory: a federal court ordered the government to release records in our litigation, the government has indicated it intends to release the opinion today, and ODNI has called a 3:00 ET press conference to discuss "issues" with FISA Amendments Act surveillance, which we assume will include a discussion of the opinion.

It remains to be seen how much of the opinion the government will actually make available to the public. President Obama has repeatedly said he welcomes a debate on the NSA’s surveillance: disclosing this opinion—and releasing enough of it so that citizens and advocates can intelligently debate the constitutional violation that occurred—is a critical step in ensuring that an informed debate takes place.

NBC reports that senior US Attorney James Trump sent Lavabit founder Ladar Levison and his lawyer a veiled arrest threat when Levison shut down his private email service (used by NSA leaker Edward Snowden) rather than comply with a secret order to spy on his customers. Nothing more can be said definitively, because the order to Levison came with a gag order prohibiting Levison from discussing it. Everyone is pretty sure that Levison was served with a National Security Letter.

America's 11-judge Foreign Intelligence Surveillance Court (FISC) has made more than a dozen classified rulings that vastly expanded the powers of America's spy agencies, operating under an obscure legal doctrine called "special needs." Under this doctrine, established in 1989 in a Supreme Court case over drug testing railway workers, a "minimal intrusion on privacy" is allowed in order to help the state mitigate "overriding public danger." FISC's rulings have widened this ruling to allow for wholesale spying in the name of preventing "nuclear proliferation," as well as terrorism. The NYT calls this a "shadow Supreme Court" but notes that FISC proceedings only hear from the government -- no one presents alternatives to the government's arguments. Much of the expansion of surveillance turns on whether metadata collection is intrusive (I think it is):

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.